Donald Trump on January 6, 2021Yuri Gripas/AP
Jack Smith‘s final report on Donald’s Trump’s attempt to steal the 2020 election doesn’t contain much new information, but what timing it has.
Released around 1 a.m. Tuesday—less than a week before Trump’s inauguration—the document takes aim at Trump’s and his lawyers’ contention that the end of Smith’s prosecution amounts to the “complete exoneration” of the president-elect.
“That is false,” Smith writes in a letter included with report, pointing out that the cases against Trump were dismissed not because he was acquitted, but simply because he won an election.
Smith makes it as clear as he can that the sole reason he dropped the January 6 case—along with the separate case regarding Trump’s attempts to hang on to classified documents he removed from the White House—was a Justice Department policy that bars prosecuting a sitting president.
“The Department’s view that the Constitution prohibits the continued indictment and prosecution of a President is categorical and does not turn on the gravity of the crimes charged, the strength of the Government’s proof, or the merits of the prosecution,” the special counsel, who resigned last week, wrote in the concluding lines of the report. “Indeed, but for Mr. Trump’s election and imminent return to the Presidency, the Office assessed that the admissible evidence was sufficient to obtain and sustain a conviction at trial.”
It’s normal for federal prosecutors to determine they can convict people they charge; they rarely bring cases they expect to lose. But this is the first time that prosecutors have asserted, just days before inauguration, that they would have been able to convict the incoming president of felonies.
Trump clearly hopes that his return to power marks the end of January 6 as a blight on his record. He even seems to view his reelection as validating his lies about his 2020 defeat. Smith’s report reads like an attempt to ensure that Trump, despite avoiding criminal conviction in the matter, will never be free of responsibility for causing a violent attack on Congress in an attempt to illegally retain power.
Even in a footnote explaining why he decided not to charge Trump with violating an anti-riot law or conspiring to impeded or injure an officer of the United States, Smith states: “The Office also had strong evidence that the violence that occurred on January 6 was foreseeable to Mr. Trump, that he caused it, and that he and his co-conspirators leveraged it to carry out their conspiracies.”
The report also suggests that Smith was eyeing criminal charges against some of the six co-conspirators mentioned, but not named, in Smith’s August 2023 indictment of Trump. “The Office’s investigation uncovered evidence that some individuals shared criminal culpability with Mr. Trump,” the document says. It also notes that the investigation found one of the conspirators “may have committed” unrelated crimes, which it referred to a US attorney’s office.
While not named by Smith, the alleged co-conspirators are identifiable. They include Rudy Giuliani, Mr. Trump’s former personal lawyer; Jeffrey Clark, a former Justice Department official; and former Trump lawyers John Eastman, Kenneth Chesebro, and Sidney Powell. Media reports have also identified Trump adviser Boris Epshteyn as another uncharged co-conspirator. All have denied wrongdoing in the case.
It’s not clear which of these individuals Smith considered charging or which he believes may have committed unrelated crimes. Smith wrote that his report “should not be read to allege that any particular person other than Mr. Trump committed a crime, nor should it be read to exonerate any particular person.”
Trump responded to the report in series of posts early Tuesday morning that called the findings “fake” and attacked Smith. “Jack is a lamebrain prosecutor who was unable to get his case tried before the Election, which I won in a landslide,” Trump wrote in one of his early morning posts. “THE VOTERS HAVE SPOKEN!!!”
It’s possible to argue that it’s unfair for Smith to insist he would have convicted Trump at trial, when he was unable to actually get either case before a jury. That complaint would be stronger if Trump had not worked so openly and aggressively to delay his trials until he could avoid them entirely by winning the election.
Still, Smith’s report, in asserting Trump’s guilt, highlights the epic failure by the federal justice system to resolve the issue of Trump’s criminal responsibility for subverting the 2020 election before the next one was held.
Critics can fault Attorney General Merrick Garland’s slow start on a high-level January 6 investigation, the partisan Supreme Court’s wish to create a presidential immunity doctrine that served Trump’s interests, or the ease with which rich defendants can slow cases. In any event, the system failed. The result is a tragedy for American politics.
